A "risk-based" approach to the cleanup of contaminated properties ("brownfields"1), that protects land-users and environmental receptors, represents a significant advance in environmental policy. A risk-based approach returns properties to productive use that would otherwise have remained blighted if environmental policy did not progress beyond traditional numerical standards or prescribed cleanups ("one size fits all" cleanup standards).
There is consensus on the wisdom of risk-based cleanup strategies. There is also broad based consensus on the wisdom of "smart growth"2 strategies. Municipal officials understand that redeveloping brownfield sites in urban areas provides jobs where they are most needed; increases property values and real estate taxes paid to financially strapped school districts; generates new sales taxes; utilizes existing infrastructure; minimizes urban sprawl; reduces energy consumption; attracts new jobs, residents and investment; and generally revitalizes post-industrial communities.3 Smart growth and brownfield strategies therefore play a prominent role in urban policy at the Federal, State and local level.
While representing an advance in environmental policy, risk-based corrective action standards have the potential to impede progress as post-industrial communities seek to reinvent themselves in a manner consistent with smart growth principles. There is a potential for conflict when private property owners (and State and Federal environmental agencies) employ "risk-based" decision-making without taking into account the "smart growth" redevelopment strategies of the community in which the polluted property is located.4 Too often, "risk-based" cleanup strategies are backward looking – basing cleanup levels on historic uses of property. Risk-based cleanups may thus be inconsistent with forward looking smart growth strategies that seek to transform industrial properties into mixed use commercial, residential and open space development. How can local units of government use their police power, specifically the power to define and abate a public nuisance, to reconcile conflicts between risk-based cleanups and smart growth redevelopment strategies if and when they arise?
The first question is, "Why does local government need to get involved?" The United States Environmental Protection Agency (USEPA)5 and Illinois Environmental Protection Agency (IEPA)6 have authority to compel owners (and other responsible parties) to clean up contaminated property. Why shouldn’t local governments leave this problem to USEPA and IEPA? There are two reasons why the voice of local government must be heard. First, every local code enforcement officer can probably identify by name and address the contaminated properties in their community that have sat empty for years and contribute to urban blight. The reality is that local communities cannot rely on USEPA and IEPA to solve this problem.7 Both USEPA and IEPA have limited resources and follow their own enforcement priorities. Unfortunately, the warehouse that has stood abandoned for twenty years will remain blighted unless the local government takes action.
Second, cleanup plans approved under the auspices of USEPA8 and IEPA may actually conflict with the redevelopment plan adopted by the local community. A cleanup plan approved by IEPA under its Voluntary Site Remediation Program (SRP)9 or Leaking Underground Storage Tank (LUST)10 program may allow contamination to remain at levels that prohibit implementation of the redevelopment plan adopted by the local community. Brownfield redevelopment and smart growth are not synonymous terms. The focus of this article is on this second problem – IEPA approved industrial cleanup plans that conflict with a community’s vision for a post-industrial future.
The Conflict Between Smart Growth and Brownfield Strategies – A Case Study
The potential for conflict between brownfield redevelopment and smart growth strategies is illustrated by the experience of the hypothetical City of Progress (City) with an industrial landowner – let’s call them Acme Industries (Acme). In 2003, the City, a home rule municipality, adopted a Redevelopment Plan designating 300 hundred acres of waterfront property for future residential, commercial and open space uses. As is the case with many post-industrial communities,11 the City’s waterfront, once dominated by heavy industry, now lies empty, blighted and contaminated. In adopting the Redevelopment Plan, the City recognized that heavy industry would not return to the waterfront, and looked at what would replace the industry that had left.12 After extensive discussion, debate, public meetings and consultation with experts on smart growth strategies, the City Council adopted a Redevelopment Plan that calls for replacing the departed industry with a mix of residential, commercial and recreational uses.
Acme owns 150 acres in the Redevelopment Plan area. The Acme property is contaminated with an assortment of toxic compounds. In 2005, upon application by Acme, but without consulting the City Council, IEPA approved a cleanup plan (a No Further Remediation Letter or "NFR Letter"). The NFR Letter is a contract between IEPA and Acme. IEPA agreed not to sue Acme for violating environmental laws. In return, Acme agreed to (1) excavate and dispose of a limited amount of the most contaminated soil on the property; (2) prohibit anybody from ever drinking the contaminated groundwater on the property; (3) permanently restrict the use of the property to industrial/commercial purposes, and specifically prohibit the type of residential development contemplated by the Redevelopment Plan; and (4) ensure that the contaminated soil on the property remain permanently covered in asphalt.
It will cost Acme $1,000,000 to comply with the conditions of the IEPA NFR Letter. It would cost Acme $4,000,000 (or more) to clean the property to a level that would be safe for the mixed use residential development contemplated by the Redevelopment Plan. If cleaned to a residential standard, as opposed to the industrial/commercial standard specified in the NFR Letter, the Acme property would have a market value of $2,500,000. From Acme’s perspective, it makes no sense to spend an extra $3,000,000 if the property will only have market value of $2,500,000 if cleaned to the higher standard called for by the Redevelopment Plan.
Acme pays $75,000 annually in property taxes. Construction of the type of mixed use development on the property contemplated by the Redevelopment Plan will generate $2,000,000 in property taxes annually for the City and other taxing bodies (primarily a school district that is under financial strain). The Acme property holds a strategic position in the center of the redevelopment area. Developers have told the City Council that they will only invest in the City’s Redevelopment Plan if the Acme property is part of a mixed-use residential redevelopment. Developers cannot sell condominiums overlooking a shuttered building and parking lot. Acme has told the City that it is unwilling to enhance the IEPA approved industrial cleanup to allow for the mixed-use residential redevelopment plan contemplated by the Redevelopment Plan.
Acme has failed in its effort to sell the property for an industrial/commercial use. Realtors have told Acme’s president, whose office is located in New York City, that the property is a "marginal" location for industry and has "impaired utility" for industrial uses: the waterfront is too distant from the interstate highway system, where modern "big box" type facilities want to be located. This assessment was confirmed by a professional appraiser. The appraiser’s confidential report to the general counsel of Acme concluded, "We think it is unlikely that an industrial user from elsewhere would want to relocate to the subject facility, given its marginal location and its functional deficiencies." The appraisal further concluded that the "highest and best use" of the property is as "open space" (a park) or residential redevelopment consistent with the Redevelopment Plan. After two years of unsuccessfully marketing the property, and on reviewing the appraisal report, Acme offered the property to the City for $1 – on the condition, of course, that the City assume all responsibility for the cleanup and indemnify and hold Acme harmless from any future liability. The City does not have $4 million to clean the property to a residential cleanup standard – but Acme does.
If the City does not accept the offer, Acme has decided that it will "mothball" 13 the property – continue to pay $75,000 annual property taxes, maintain site security, but not incur any additional cleanup costs. Acme’s accountants have determined that it is less expensive to pay the expense of "mothballing" the property than to clean the property to the standard necessary for the City to realize the goals of its Redevelopment Plan.
Some variant of this scenario has played out in almost every post-industrial community in Illinois. The City is fortunate in that Acme has the financial resources to clean the property to a residential cleanup standard. This is not always the case. Due to changing patterns of manufacturing and distribution, many industrial properties along rail lines and waterways often become obsolete and are no longer suited for industrial use,14 or in the words of Acme’s appraiser, of "impaired utility" for industrial uses due to "functional deficiencies". The proximity of the Acme property to the waterfront, the City’s downtown and public transportation makes the property particularly well suited for mixed use residential, commercial and recreational (but not industrial) redevelopment. If "cleaned" to an "industrial" standard, the Acme property will remain blighted, underutilized and an ongoing public nuisance to the City. If the City is to realize its goal for a post-industrial future and implement a smart growth strategy revolving around the waterfront, downtown and public transportation, the Acme property must be cleaned to a level that is safe for a mixed use residential, commercial and recreational development as contemplated by the Redevelopment Plan. Mothballing the property will prevent the City from realizing its redevelopment goals.
In this hypothetical case, the IEPA and USEPA have not been helpful. The City was informed that Acme, not IEPA, decides whether to clean the property to a residential or commercial/industrial standard under the SRP. The City was further informed that if IEPA did not issue the NFR Letter, Acme could appeal the denial to the Illinois Pollution Control Board.15 USEPA also has a policy not to bring enforcement actions to require additional cleanup when a property owner has obtained a NFR Letter under the SRP.16 In short, the City’s complaint that IEPA approved an industrial cleanup inconsistent with the Redevelopment Plan fell on sympathetic, but deaf, ears.
How did we get here? Why is it that Acme’s financial interest trumps the broader interest of the community? Why is IEPA endorsing a decision by Acme that is out of sync with the City’s Redevelopment Plan? Haven’t land use decisions always been made by Planning Commissions and municipal governments?17 Why is the future of the City’s waterfront being decided in Springfield without consultation with the City Council? What can the City do to reassert its authority over the future of its Redevelopment Plan?
This article addresses the interplay between a municipality’s authority to define and abate a public nuisance18 and the IEPA’s authority to issue a NFR Letter under the Illinois Environmental Protection Act (the Act). The central premise of this article is that the power to define and abate a public nuisance supplements the power of a community to enact reasonable land use controls that promote the public health, safety, morals and general welfare. In the seminal case upholding zoning controls as a legitimate exercise of the police power, the U.S. Supreme Court observed,
[T]he question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. [citation omitted]. A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.
Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 387-388 (1926).
The restriction of the hypothetical Acme property to an industrial use would not have been fairly debatable thirty years ago when heavy industry dominated the City’s waterfront. But circumstances have changed. The power of a local unit of government to define and abate public nuisances is a corollary to the power to regulate land use so as to promote the general welfare, as recognized by the U.S. Supreme Court in Village of Euclid. The City is not powerless to prevent Acme from mothballing its property and frustrating the City’s effort to implement its Redevelopment Plan. The City need not sit by helplessly as a pig sits in its parlor.
Even though IEPA issued an NFR Letter to Acme sanctioning a cleanup to an industrial standard, the City has the power to declare the contamination on the Acme property above residential cleanup standards a public nuisance. The City, a home rule unit of government, has the power to define a public nuisance to include environmental contamination that impedes implementation of its Redevelopment Plan. Further, the City’s authority to establish stricter cleanup standards is not preempted, or superseded, by Section 58.10 of the Act, 415 ILCS §5/58.10, which authorizes the IEPA to issue the NFR Letter to Acme.
On the first issue, the scope of the City’s home rule authority, the Illinois Supreme Court in City of Chicago v. Pollution Control Board, 59 Ill.2d 484, 489 (1974), held:
The State has legislated in this field by the adoption of the Environmental Protection Act, which did not express the intent that the State should exclusively occupy this field, but rather provided in section 2(a)(iv) (Ill.Rev.Stat.1973, ch. 111 1/2, par. 1002(a)(iv)) that it is the obligation of the State Government ‘to encourage and assist local governments to adopt and implement environmental-protection programs consistent with this Act. We conclude therefore that a local governmental unit may legislate concurrently with the General Assembly on environmental control. However … such legislation by a local government unit must conform with the minimum standards established by the legislature. [Emphasis Added]
The Supreme Court followed this up with its decision in County of Cook v. John Sexton Contractors, 75 Ill.2d 494 (1979). The Court first looked at the relevant provisions of the 1970 Illinois Constitution:
An assessment of the relationship between State legislation and regulations enacted by a local governmental unit requires a different approach when the local unit is a home rule unit. Under the 1970 Illinois Constitution (Ill.Const.1970, art. VII, sec. 6), effective July 1, 1971, many local units of government became, or were given the power to become, home rule units, which were granted the following power:
Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt. (Ill.Const.1970, art. VII, sec. 6(a).)
75 Ill.2d at 507-508.
The Sexton Court then focused specifically on the field of environmental regulation:
The difficulty in determining the extent of home rule power arises because many matters are of both local and regional or statewide concern. A prime example is environmental regulation. Few matters would seem to be of more local concern than controlling local sources of pollution ….The General Assembly may remove or limit most home rule powers by a three-fifths majority vote (Ill.Const.1970, art. VII, sec. 6(g)), or may specifically supercede, either in part or in total, most home rule powers through its own legislation covering the particular matter (Ill.Const.1970, art. VII, secs. 6(h), 6(i)). Absent such action by the General Assembly, home rule units may, concurrently with the State, exercise and perform any home rule powers. Ill.Const.1970, art. VII, sec. 6(i). [Emphasis Added]
Id. at 508-509.
The Sexton Court then rejected the defendant’s contention that local regulation impinged on the comprehensive state-wide scheme envisioned by the Act:
Sexton emphasizes that the Act established a state-wide program of environmental regulation. The existence of the Act, however, is not determinative of whether regulation of sanitary landfills is within the home rule power. As stated, the Constitution specifically provides the legislature with the ability to deny, limit, or exclude home rule units from exercising most home rule powers. (Ill.Const.1970, art. VII, secs. 6(g) to 6(i).) ….We do not believe that it was the intent of the framers of the 1970 Constitution to exclude regulation of solid waste disposal from those matters that pertain to the government and affairs of home rule units. "The fundamental reason for favoring home rule over the existing system of legislative supremacy is this: Local governments must be authorized to exercise broad powers and to undertake creative and extensive projects if they are to contribute effectively to solving the immense problems that have been created by the increasing urbanization of our society." (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1605.)
Id. at 510-511.
The Sexton Court nevertheless did impose an implied limitation on home-rule authority in the environmental field. A municipality’s regulation must conform to the minimum standards adopted by the Pollution Control Board:
Sexton argues that to require compliance with local zoning restrictions would disrupt the statewide concern expressed by the legislature and the need for regulation of environmental matters on a statewide basis. We are not so persuaded. The framers of the Constitution were cognizant of potential problems but, nevertheless, opted to give home rule units broad grants of power subject to legislative control. ….As earlier concluded, the County, a home rule unit, may, under its "government and affairs" authority, impose zoning restrictions. This power is not to be denied. The Act does not delegate zoning powers to the Agency or the Board but, in fact, limits such power. Section 22 of the Act (Ill.Rev.Stat.1977, ch. 111 1/2 , par. 1022) empowers the Board to adopt Regulations for the location of landfills but not to designate the actual site. Section 27(a) of the Act (Ill.Rev.Stat.1977, ch. 111 1/2 , par. 1027(a)) restricts the Board by stating:
" The power of the Board to set uniform, statewide environmental standards and the power of the County to zone property within its boundaries are therefore evidenced as distinct but concurrent powers that must be exercised cooperatively in the interest of environmental protection. To this end, the County, in zoning land for landfill sites, must adhere to the environmental regulations adopted by the Board, while the Agency, operating under the Board’s regulations, must comply with the County’s zoning ordinance when issuing permits for landfill sites. Thus, the authority granted the Board under the Act and the home rule authority granted to the County under the Constitution’s article VII, section 6, can be exercised in unison to accomplish the public policy expressed in article XI, section 1, of the 1970 Constitution. [Emphasis added]
Id. at 515-517.
Sexton was followed by the landmark case of Village of Bolingbrook v. Citizens Utilities Company of Illinois, 158 Ill.2d 133 (1994), where the Court enunciated two sweeping principles:
1. Zoning regulations that purport to regulate waste disposal pertain to a home rule municipality’s "government and affairs" and are thus a valid exercise of home rule authority under §6(a) of the Illinois Constitution.
2. Implied preemption of home rule authority based on a comprehensive statutory scheme is not the law in Illinois.
158 Ill.2d at 137, 141-142.
Finally, although rarely discussed in the case law, the implied preemption argument was completely done away with by §7 of the Statute on Statutes, 5 ILCS 70/7:
No law enacted after January 12, 1977, denies or limits any power or function of a home rule unit, pursuant to paragraphs (g), (h), (i), (j), or (k) of Section 6 of Article VII of the Illinois Constitution, unless there is specific language limiting or denying the power or function and the language specifically sets forth in what manner and to what extent it is a limitation on or denial of the power or function of a home rule unit.
But isn’t the City bound by a formal decision (the NFR letter) by the administrative agency (IEPA) statutorily authorized to implement the Act? The courts have answered this question with a resounding "no". See PMC v. Sherwin-Williams Company, 151 F.3d 610, 619 (7th Cir. 1998); Spillane v. Commonwealth Edison Co., 291 F.Supp.2d. 728, 736 (N.D.Ill. 2003)
The City has the power to kick the pig out of the parlor — to require Acme to clean its property to a level that will allow the City to revitalize its waterfront. A NFR Letter may not be used as shield against a public nuisance action brought by the City. Future articles in this series will address the following issues:
1. The form a public nuisance ordinance might take;
2. The authority of non-home rule units of government, under the Illinois Municipal Code, to establish cleanup standards consistent with zoning, land use planning and redevelopment objectives;
3. The more complex interplay between the authority of local governments to define and abate a public nuisance and Federal environmental statutes, such as the Comprehensive Environmental Response and Liability Act, 42 U.S.C. 9601 et. seq.
1 This article assumes the reader is familiar with the definition of a "brownfield". For background information on brownfields see http://www.epa.gov/brownfields/index.html. See also the Illinois Environmental Protection Agency’s Fact Sheet available at http://www.epa.state.il.us/land/taco/fact-sheet.html (last visited June 11, 2009).
2 A definition of "smart growth is available at http://www.epa.gov/smartgrowth/basic_info.htm (last visited June 11, 2009).
3 For a succinct discussion of the environmental, social and economic benefits of redevelopment consistent with smart growth principles see http://www.smartergrowth.org (visited June 11, 2009) and David O’Neil, Smart Growth: Myth and Fact, Urban Land Institute, available at http://www.uli.org/ResearchAndPublications/Reports (last visited June 11, 2009).
4 A variety of tools are available to local units of government to implement smart growth and brownfield strategies. See, e.g., Local Land Resource Management Planning Act, 50 ILCS 805/1 et. seq. and Illinois Municipal Code, 65 ILCS 5/11-13-1 et. seq.)); Illinois Municipal Code, 65 ILCS 5/1-2-7 (code enforcement authority); Tax Increment Allocation Development Act, 65 ILCS 5/11-74.4-1 et. seq.; Illinois Enterprise Zone Act, 20 ILCS 655/1 et. seq.); River Edge Redevelopment Zone Act, 65 ILCS 115/10-1 et. seq.; Illinois Eminent Domain Act, 735 ILCS 30/1-1-1 et. seq.; Intergovernmental Cooperation Act, 5 ILCS 220/1 et. seq.
5 See, e.g., Sections 106 and 107 of the Comprehensive Environmental Response Compensation and Liability Act (commonly known as the "Superfund Statute"), 42 U.S.C. §§9606 and 9607(a), Sections 3004 and 7003 of the Resource Conservation and Recovery Act, 42 U.S.C. §§6928(a) and 6973.
6 See, e.g., Sections 22.2(f) and 58.9(a) of the Illinois Environmental Protection Act, 415 ILCS §§5/22.2(f) and 5/58.9(a).
7 For an excellent work on the importance of municipal self-reliance, see John Norquist, The Wealth of Cities: Revitalizing the Centers of American Life (1998")
8 The issue of the conflict between a cleanup plan selected by the USEPA under the Federal Superfund Program and a local redevelopment plan will be the subject of a future article.
9 See Illinois Site Remediation Program, 415 ILCS 5/58 et. seq., 35 IAC 740; Tiered Approach To Corrective Action Objectives, 35 IAC 742.
10 See Leaking Underground Storage Tanks, Site Investigation and Corrective Action, 415 ILCS 5/57.7 and Petroleum Underground Storage Tanks, 35 IAC 734.140 (petroleum contamination cleaned to achieve risk based remediation objectives under 35 IAC 742).
11 See, e.g., Federal Reserve Bank of Chicago, Midwest Economy, "What are the opportunities in central cities?" available at http://midwest.chicagofedblogs.org/archives/cities (last visited June 13, 2009).
12 See, e.g., Staff Report to Waukegan Mayor and City Council regarding rezoning a 34 acre lakefront parcel from industrial to residential (2002)("The question is not whether heavy industry will return to the lakefront, but what will replace the industry that has left.")(available from authors upon request).
13 See, e.g., Brownfields: New Regulations, New Opportunities and New Glitches, Tuck School of Business at Dartmouth (2005) available at mba.tuck.dartmouth.edu/pdf/2005-1-0093.pdf (last visited June 13, 2009).
14 See discussion above in footnote 11.
15 See Illinois Site Remediation Program, 35 IAC 740.215(d).
16 USEPA is unlikely to take enforcement action at a site that has received a No Further Remediation Letter under the Illinois (Voluntary) Site Remediation Program. See generally Superfund Memorandum of Agreement between the Illinois Environmental Protection Agency, State of Illinois and the United States Environmental Protection Agency, Region V, Addendum No. 1 (1995); Notice of Availability of Final Draft Guidance for Developing Superfund Memoranda of Agreement Language Concerning State Voluntary Cleanup Programs, 62 Fed. Reg. 47495 (Sep. 9, 1997);.
17 In Illinois, zoning and land use planning is considered a traditional and primarily local government function. See Cook County v. John Sexton Contractors Co., 75 Ill.2d 494, 511 (1979.
18 This article focuses on the authority of Home Rule Units of Government. Future articles in this series will discuss the authority of non-home rule units of government in this area.
Jeffery Jeep received his law degree from Loyola University of Chicago in 1982. He served as an Assistant State’s Attorney in Lake County, Illinois from 1982 through 1985. From 1985 to 1995 he served as senior environmental counsel at Waste Management, Inc., where he was responsible for regulatory affairs and environmental litigation in New Jersey, New York, Pennsylvania, New England and Eastern Canada. He is a partner in Jeep & Blazer, LLC, a law firm specializing in environmental law.
Mike Blazer received his Bachelor of Arts, Loyola University of Chicago, 1979. and his law degree Loyola University Law School, J.D., Cum Laude, 1982. Michael is a trial lawyer experienced in state and federal trial and appellate matters throughout the United States. He has represented numerous clients, both public and private, in connection with litigation, arbitration, mediation, PRP group negotiations and direct agency negotiations regarding numerous federal and state Superfund sites and closed landfills He is a partner in Jeep & Blazer, LLC, a law firm specializing in environmental law.